Keith Wolahan (Menzies, Liberal Party) Share this | Hansard source

There's a quote that's often attributed to Benjamin Franklin—I made sure it was actually from him—and it's this:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

Like with all quotes, it's important to acknowledge its context. I dug a little deeper, and it wasn't about a circumstance such as this, in that period of America's history, where they were enforcing powers for the police to stop a terrorist group, or help with the war; it was about a tax dispute. As we know from the American revolution, tax can really get people's passions boiling and lead to a revolution. That particular tax dispute was between the Penn family and the Pennsylvania General Assembly.

Despite the context, the quote is important because it goes to the heart of what's happening here. We're trying to get that fine balance between keeping Australians safe and enforcing our liberties and freedoms, including the presumption of innocence, and not detaining people unnecessarily. People often refer to judicial discretion, and it's an important part of the justice system, but something that's often overlooked is the discretion for police and for prosecutors. When you look through our criminal law history, that's probably the greatest filter for discretion. Whenever there's a debate on mandatory sentencing, I think it focuses on the wrong discretion. When we look at that discretion of the Australian Federal Police, they deserve credit.

This particular regime has some really serious powers, and we rely on the judgement of the individual detectives and officers to make a call on that. When you look at the three components of the regime, the first being the stop, search and seizure powers, they've enacted it zero times. When you look at the second part—the control order regime—it has happened 23 times, and once for someone who's under 18. The third, the preventative detention order regime, has happened zero times. It's important that we acknowledge the work that's done by the Australian Federal Police in having a check on their own power. That should always be something we monitor from this place, and that is why I think that it is important this is reviewed as much as it can be. I also think that when you look at the report from the joint parliamentary committee on the additional safeguards, those safeguards are important, but it is also important that we work through the agencies and the state governments to make sure that they're enforced properly.

We should never forget the history of this particular regime. It goes back to 2005. I remember I was a junior lawyer, feeling sorry for myself doing a mergers and acquisitions agreement late at night, and I noticed on the TV in the corner there was a London bus. We all know what they look like, but the top was peeled open like a tin of baked beans. I had the sickening feeling that, four years after September 11, something was happening again, and that wasn't a once-off incident. I downed tools on the particular agreement I was drafting, because it didn't matter anymore. Not only did I look in horror at that bus that was peeled open, but then I also saw smoke coming out of the tube. Many Australians have had wonderful experiences in London, and we look in envy at their train system, thinking, 'Why can't we have that in Melbourne or Sydney'—well, definitely in Melbourne. The important thing is that there were people in there. There were people on that bus. And our first duty as a government is to keep people safe. How do we do that while getting that fine balance between not abusing powers and making sure that Australians are safe. I think this regime strikes that balance. But that's not always the case, and I think it's important that we look at this again and again.

I commend the report from the joint standing committee. There's a lot of work in it. They heard submissions from human rights commissioners and the Law Council, who gave quite harrowing stories of some people who were permanently affected by this and ultimately proved to be innocent. We should never forget that the presumption of innocence is such an important part of who we are—not just our judicial system but our sense of fairness. We'll have that debate about the anti-corruption commission today, but at the pointy end of criminal law is where it matters most. I think we should make sure we get this balance right. I commend the report by the joint standing committee, and I commend the amendment.

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